THE REPORT FROM WASHINGTON

4 Horsemen of the Apocalypse

Exclusive: Ellis Washington profiles men who tried to save respect for Natural Law

Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of John Marshall Law School and post-grad work at Harvard Law School, his latest law review article is titled, "Social Darwinism in Nazi Family and Inheritance Law." Washington’s latest book is a 2-volume collection of essays and Socratic dialogues – "The Progressive Revolution" (University Press of America, 2013). Visit his popular law/political blog, "EllisWashingtonReport.com, an essential repository dedicated to educating the next generation of young conservative intellectuals.

America was originally conceived as a democratic republic under Natural Law. However, since the early 1930s, our government has devolved into a socialist welfare state under Positive Law where America’s cherished liberties and freedoms have been sacrificed, often at the hands of an oligarchy of five judges.

In a paradoxical twist, almost eight decades ago, at the advent of FDR’s socialist revolution to remake America into a servile welfare state he called “The New Deal,” a judicial oligarchy called “The Four Horsemen of the Apocalypse” were the only men standing between liberty and tyranny. Liberal Democrats so hated these four men that they enflamed the people to hang them in effigy.

The Four Horsemen of the Apocalypse (an epithet given by the liberal press) were four conservative justices of the U.S. Supreme Court who for a short time, between 1933-37, held back the unconstitutional programs of FDR’s New Deal from becoming the law. Amity Shlaes’ 2007 book, “The Forgotten Man,” did a fine analysis of the Four Horsemen and their opposition against FDR’s socialist New Deal.

The Four Horsemen included: Justices Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter. They were opposed by the liberal “Three Musketeers” – Louis Brandeis, Benjamin Cardozo and swing voter Chief Justice Charles Evan Hughes, who mostly voted with the liberals, but on occasion with the Four Horsemen and Harlan Stone, who often voted with the conservatives.

In 1935, the U.S. Supreme Court unanimously declared in Schechter Poultry Corp. v. United States that the NIRA (National Industrial Recovery Act) – and the AAA (Agricultural Adjustment Administration) – was unconstitutional, ruling that it infringed the separation of powers under the United States Constitution;

In 1936, the Court in United States v. Butler, overruled the Agricultural Adjustment Act of 1933 along with the Federal Farm Bankruptcy Act, the Railroad Act and the Coal Mining Act;

In Carter v. Carter Coal Company (1936), the Four, together with Roberts, voided legislation regulating the coal industry as being beyond the scope of the Commerce Clause, that the terms of the act affected production, not commerce;

Morehead v. New York (1936), the Four with Roberts ruled unconstitutional a New York minimum-wage law for women and children.

In his essential book, “Constitution in Exile,” Judge Andrew Napolitano wrote, “The Great Depression created pressure to abandon the Constitution’s free-market underpinnings. In this uniquely desperate time, popular perception was that government regulations would improve the economic state of those suffering, and when people are hungry, they tend not to think about the Constitution, limited government, or the Natural Law.”

The Four Horsemen’s heroic actions checked and balanced Congress and the states from mandating a Marxist socialist economy to replace the existing free-market economy. The state-controlled media that favored FDR’s fascist tactics convinced most American observers that the Court was likely to be disruptive to all legislative efforts embodied in the New Deal to cope with the Depression by remaining faithful to the Natural Law precedents of the Lochner Era (1905-35).

It was the success of the Horsemen in striking down New Deal legislation that led to Roosevelt’s court-packing scheme to increase the size of the Supreme Court from 9 to 15 members. The “switch in time that saved nine” together with the retirement of Van Devanter in June 1937 and his replacement by Hugo Black ended the Four Horsemen’s obstruction of FDR’s New Deal.

FDR’s tyranny over the Court was completed in NLRB v. Jones & Laughlin Steel Corp. (1937) where the Court overruled the limits it had placed on Congress’ commerce power. The National Labor Relations Act of 1935 established the National Labor Relations board to oversee labor disputes. A Democratic cabal of big-city mayors, labor unions, media, academics and a progressive Congress functioning outside its Article 1, Section 8 enumerated powers determined that labor-management disputes were directly related to the flow of interstate commerce and, thus, could be regulated by the federal government. The production-versus-commerce distinction was at this point discarded.

Though restricted in its powers, the federal government is supreme within its field and the power of Congress recognized by the Ninth and 10th Amendments. However, the NLRB case went well beyond these constitutional strictures when the Court declared that “the fundamental principle is that the power to regulate commerce is the power to enact all appropriate legislation for its protection and advancement.”

Justice McReynolds’ dissent in NLRB argued that the reinstatement of these employees only affected about 10 people directly, so any relation or effect on commerce was remote and indirect. If the distinction between direct and indirect interstate commerce is destroyed, then almost anything – birth, death, marriage, health care – might affect commerce and thus be subject to congressional regulation.

The 150-year battle between Natural Law and Positive Law was over – and tyranny won.

Epilogue

Between 1937 and 1941, FDR would make eight appointments to the Supreme Court, the most of any president except Washington. That four-year period witnessed the departure of the Four Horsemen and others from the Supreme Court. The Court ceased being an independent third branch of government and was now an adjunct to the executive branch, slavishly compliant with FDR’s New Deal programs and legislation. This fascism would exist 60 years until U.S. v. Lopez (1995) when the Rehnquist Court overturned the Gun Free School Zone Act of 1990, calling it beyond scope of the Interstate Commerce Clause and thus unconstitutional.